Bangalore District Court
So vs No.2 Being The Insurer Shall Pay The ... on 12 November, 2020
IN THE COURT OF XIII ADDL. SENIOR CIVIL JUDGE & MACT,
COURT OF SMALL CAUSES, SCCH15.
PRESENT: P.J. Somashekhar
B.A. LL.M.
III Addl. Senior Civil Judge
& MACT., Bengaluru.
DATED THIS THE 12th DAY OF NOVEMBER 2020
MVC.No.215/2019
Sri. Shanmugam K.N.,
S/o Nallandi Gounder,
Aged : 66 years, Occ: Mechanic,
R/at No.39, 3rd Main Road,
Kamakshi Paly,
Basaveshwarangar,
Bengaluru560079.
.......Petitioner/s.
(Shri. K.S.L., Advocate)
Vs.
1. Sri. S. Raghavendra,
S/o. Sri. Sanjeev Kumar,
No.40/2, 7th Cross,
Sri Gandhadakaval,
Bengaluru - 560 091.
(Owner of Motor cycle No.KA02EQ7045)
2. The Regional Manager,
United India Insurance Co. Ltd.,
5th & 6th Floor, Krishi Bhavan,
Nrupathunga Road, Hudson Circle,
Bengaluru560 001.
(Insurer of Motor cycle No.KA02EQ7045
Policy No.71683118P102225958
Valid: 16.05.2018 to 15.05.2019)
2 MVC No.215/2019
( Respd.No.1 : Exparte
Respd.No.2 Rep/by Sri. H.T.V., Advocate)
*****
Date of institution of the 09.01.2019
petition
Nature of the petition For compensation
Date of commencement of 10.12.2019
evidence
Date of Judgment 12.11.2020
Total duration Year/s Month/s Day/s
01 10 03
:JUDGMENT:
This is a claim petition filed by the petitioner under Sec.166 of Motor Vehicles Act against the respondents for seeking compensation of 10,00,000/ for the injuries sustained by him in a road traffic accident said to have been taken place on 1912 2018.
2. The brief facts of the claim petition are as under: The petitioner said to be the injured in his claim petition has alleged that, on 19122018 at about 10.45 A.M. he was crossing the road, after observing the traffic rules on either side of the road 3 MVC No.215/2019 from Summanhalli service road to Bharathiya Samaskruthi Vidyapeeta, near Vijay Eye hospital, Bengaluru, the rider of Motor cycle bearing Reg. No.KA02EQ7045, came in a rash and negligent manner dashed against him, as a result he was fell down and sustained grievous injuries, thus immediately he has been shifted to Unity Life Line hospital and took the first aid treatment, later he has been shifted to Bowring hospital, Bengaluru, wherein he has took the treatment as inpatient by spending an amount of Rs.50,000/, inspite of best treatment he could come to the normal position and still he is facing difficulties.
3. Prior to the accident he was hale and healthy, working as a mechanic by getting monthly income of Rs.25,000/. Due to the accidental injuries he could not do the work as earlier, himself and his family members were put into deep mental shock and agony, since his family members were depending on his income. The accident in question was taken place on account of rash and negligent riding of the Motor cycle rider, thereby Kamakshipalya Traffic Police have registered the case against the rider the Motor cycle in their Police Station Crime No.230/2018 for the offence punishable under Sec.279 and 338 of IPC. The respondent No.1 & 4 MVC No.215/2019 2 are being the owner and insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice the respondent No.2 was appeared through its counsel and filed the objection statement, though the notice has been served on the respondent No.1, but inspite of service of notice, did not appear nor filed his objection statement as he was placed exparte.
5. The respondent No.2 in his objection statement has alleged that the claim petition which filed by the petitioner is not maintainable in law or on facts, either the owner of the vehicle nor the jurisdictional policy have not complied the mandatory provisions under section 134(c) and 158(6) of Motor Vehicles Act in furnishing better particulars in respect of the offending vehicle and he has admitted about the issuance of policy in favour of respondent No.1 and in respect of the Motor cycle bearing Reg. No.KA02EQ7045 and its liability subject to the terms and conditions of the policy and the motor cycle was not at all involved in the accident, even then the petitioner colluding with the owner and the police has falsely implicated the vehicle for wrongful gain 5 MVC No.215/2019 and the rider of the motor cycle was not holding the valid and effective driving licence to ride the motor cycle and respondent No.1 being the owner of the vehicle has contravened the terms and conditions of the policy and he is not liable to pay the compensation and the accident in question was taken place on account negligence of the petitioner and the petitioner was crossed the road where there was no zebra cross and he has denied that the petitioner was crossing the road and the rider of the motor cycle was came in a rash and negligent manner dashed against the petitioner, as a result he has sustained grievous injuries and took the treatment in a different hospitals by spending huge amount, prior to the accident he was doing mechanic work by getting monthly income of Rs.25,000/, due to the accidental injuries he could do work as earlier and entire family is depending on his income and the petitioner has to strict proof of the same and he has alleged that the petitioner suddenly crossed the road where there was no pedestrian crossing and without observing the movement of the vehicles in the very busy main road and he has contributed for the cause of accident to an extent of 50% and prays for reject the claim petition.
6 MVC No.215/2019
6. On the basis of the pleadings of the parties, my predecessor has framed the following issues ;
1. Whether the petitioner proves that, he has sustained injuries due to RTA alleged to have been occurred on 19 122018 at about 10.45 a.m., on Summanahalli road, near Vijaya Eye Hospital, due to the rash and negligent riding of rider of Motor cycle bearing Registration No.KA 02EQ7045 ?
2. Whether the petitioner is entitled for compensation? If so, what amount and from whom ?
3. What order or award ?
7. The petitioner in order to prove the claim petition has examined himself as PW.1 and got marked the documents as Ex.P.1 to 13 and examined one more witness on his behalf as PW.2 and got marked the documents as Ex.P.14 to 16. The respondent No.2 in order to prove its case, has examined the SDA of RTO office of Gnanabharathi as RW1 and got marked the documents as Ex.R.1 and R.2.
8. Heard the arguments on both sides.
9. My findings to the above issues are as under: 7 MVC No.215/2019 Issue No.1 In the Affirmative.
Issue No.2 Partly in the Affirmative.
Issue No.3 As per the final order, for the following;
: REASONS :
10. ISSUE NO.1 : The petitioner said to be the injured has approached the Court on the ground that, on 19.12.2018 at about 10.45. a.m., when he was crossing the road near Vijaya Eye hospital, Bengaluru, the rider of the motor cycle dashed against him, as a result, he was fell down and sustained grievous injuries and took the treatment in a different hospitals, inspite of best treatment he could not come to the normal position, still he is facing difficulties, thereby the petitioner has filed the instant claim petition.
11. The petitioner in order to prove his case has filed his affidavit as his chiefexamination by reiterating the averments of claim petition stating that, on 19122018 at 10.45 a.m., he was crossing the road after observing all the traffic rules and regulations on either side of the road from Summanahalli service road to Bharathiya Samaskruthi Vidyapeeta, near Vijaya Eye hospital, Bengaluru, the rider of motor cycle bearing Reg. No.KA 8 MVC No.215/2019 02EQ7045 was came in a rash and negligent manner, dashed against him, as a result he was fell down and sustained the grievous injuries. So, immediately he has been shifted to Unity Life Line hospital wherein he has took the first aid treatment, later on shifted to Bowring & Lady Curzon hospital, Bengaluru wherein he took the treatment as inpatient, inspite of best treatment he could not come to the normal position, still he is facing difficulties, the accident in question was taken place on account of rash and negligent riding of the rider of motor cycle, thereby Kamakshipalya Traffic police have registered the case against the rider of the Motor cycle in their Police Station Crime No.230/2018 for the offence Punishable under 279 & 338 of IPC. The PW1 in his crossexamination has admitted as on the date of accident he was alone proceeding by walk as a pedestrian and there was no zebra cross, where he was crossed the road and he has denied that he was crossing the road where there was no zebra cross, that is the reason why the accident was occurred on his negligence and the accident in question was not taken place on account of rash and negligent riding of the rider of the motor cycle and he has filed the false complaint against the rider of the motor cycle. 9 MVC No.215/2019
12. The petitioner in support of his oral evidence has produced the documents marked as Ex.P.1 to 16. Ex.P.1 is the information and FIR which are clearly reflects, one Shanmugam who is none other than the petitioner had filed the information before the police stating that on 19122017 at about 10.45 A.M., when he was crossing the Summanhalli service road to Bharathiya Samaskruthi Vidyapeeta, near Vijaya Eye hospital, Bengaluru, the rider of Motor cycle bearing Reg. No.KA02EQ 7045 was came in a rash and negligent manner dashed against him, as a result he was fell down and sustained injuries on his right leg and the person who caused the accident has took him to the Unity Life Line hospital with the assistance of the publics who were gathered on the spot and he took the first aid treatment, the accident in question was taken place on account of rash and negligent riding of the rider of motor cycle. So,based on the information Kamakshipalya Traffic police have registered the case against the rider of Motor cycle in their Police Station Cr.No.230/2018 for the offence punishable under Sec. 279 and 338 of IPC.
13. The learned counsel for the respondent No.2 has cross 10 MVC No.215/2019 examined the P.W.1 nothing is elicited to disbelieve the evidence of PW1. Though he has suggested to the PW.1 that the accident in question was taken place on account of his own negligence and it was not taken place on account of rash and negligent riding of the rider of motor cycle and he was crossed the road where there was no zebra cross, for which he has denied the same, if at all the accident was occurred on account of negligence of the petitioner nothing is prevented to the respondent No.2 to examine the rider of motor cycle to show that the accident in question was taken place on the negligence of the petitioner and it was not taken place on account of rash and negligent riding of the rider of motor cycle, if that is so, the matter would have been different,except the the suggestion to the PW1 nothing is placed on record to show that the accident was occurred on account of negligence of the petitioner. So, the contents which appeared in the Ex.P.1 are corroborate the evidence of the PW1.
14. The spot panchanama and sketch which prepared by the I.O marked as Ex.P.2 are clearly reflects the width of accident place road is 30 feet and the accident was occurred towards eastern side of the road, which is three feet away from the eastern 11 MVC No.215/2019 side, though there is a sufficient place i.e. 27 feet towards western side, but the reasons best known to the rider of motor cycle has took the motor cycle towards extreme eastern side, if the rider was proceeding towards extreme western side of the road, the accident would not occurred, even it is not the case of respondent No.2 that so many vehicles are proceeding at the time of accident towards western side of the motor cycle that is the reason why the rider of the motor cycle has took the motor cycle towards eastern side, if that is so the matter would have been different, but it is not the case of the respondent No.2 that so many vehicles are proceeding towards eastern side of the motor cycle, that is the reason why the rider of motor cycle was took the motor cycle towards eastern side, thereby the Ex.P.2 is very much clear that the accident was occurred on account of rash and negligent riding of the rider of motor cycle, merely on the ground that there was no zebra cross, where the petitioner was crossed the road, it does not mean that there was no negligence on the part the rider of motor cycle, since the rider of motor cycle was not taken minimum care to avoid the accident, though there is a sufficient space towards western side of the motor cycle to avoid the accident. Thus, Ex.P.2 is very much clear the accident was occurred on account of sole rash 12 MVC No.215/2019 and negligent riding of the rider of motor cycle. Ex.P.3 is the Motor Vehicles Accident report reflects about the involvement of offending vehicle in the accident. Ex.P.6 is the wound certificate reflects that, the petitioner has sustained the injuries because of the accident which caused by the rider of motor cycle and Ex.P.8 to 16 are very much clear that soon after the accident the petitioner has took the treatment in connection of the injuries which sustained by him in a road traffic accident said to have been taken place on 19122018 as inpatient and outpatient by spending huge amount.
15. The Ex.P.7 is the charge sheet which filed by the I O clearly reflects that the accident in question was taken place on account of rash and negligent riding of the rider of Motor cycle. So, the documents which marked as Ex.P.1 to 16 are coupled with the oral evidence of PW1. The petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on account of rash and negligent riding of the rider of Motor cycle. Hence, I am the opinion that the Issue No.1 is answered as Affirmative.
16. ISSUE NO.2: The PW.1 being the injured in his 13 MVC No.215/2019 evidence has stated that on 19.12.2018 at about 10.45 a.m., when he was crossing the road by observing all the traffic rules and regulations, the rider of motor cycle was came in an opposite direction in a rash and negligent manner dashed against him, as a result he was fell down and sustained the following injuries:
1) Fracture of right leg both bones.
2) Right side head injuries
3) Other injuries all over the body.
So, immediately he has been shifted to Unity Life Line Hospital, wherein he has took the first aid treatment and shifted to Bowring & Lady Curzon hospital, Bengaluru and took the treatment as inpatient and he was under went surgery and discharged from the said hospital on 28122018 with an advice for taking follow up treatment, but inspite of best treatment he could not come to the normal position and still he is facing difficulties.
17. Prior to the accident he was hale and healthy, working as a Mechanic by getting monthly income of Rs.25,000/ p.m. Due to the accidental injuries he could not do the work as earlier, thereby not only himself but also his family members were put into deep mental shock and agony since he is only the earning 14 MVC No.215/2019 member in the family and his family members were depending on his income. The PW1 in his crossexamination has admitted that soon after the accident he has been shifted to Unity Life Line hospital by the publics who were gathered on the spot, wherein he has took the first aid treatment, later on he has been shifted to Bowring and Lady Curzon hospital, Bengaluru for higher treatment and took the treatment as inpatient for a period of 8 days, but he has denied that he was not under went any surgery at Bowring hospital and he has not sustained any fracture, after the discharge he did not took the treatment as outpatient by spending an amount of Rs.30,000/ and the Bowring hospital is the Government hospital, wherein he took the free of cost treatment, the implants are already removed and he has admitted that he has not produced any documents to show that prior to the accident he was doing mechanic work by getting monthly income of Rs.25,000/.
18. The petitioner has examined Orthopedic Surgeon as PW2, who filed his affidavit as his chief examination in which has stated that, on 17092019 has examined the patient namely Shanmugam who was aged about 66 years, in respect of the 15 MVC No.215/2019 injuries sustained in the road traffic accident, said to have been taken place on 19122018, for clinically and radiologically assessment of the disability, as he has sustained the following injuries:
1) Type Open fracture of both bones of right leg.
19. So, the petitioner has under went surgery on 2412 2018 for open reduction internal fixation with IMIL nailing and recently has examined the petitioner and found the following difficulties:
Walks with pain and limping Diffuse swelling of (right) lower limb Surgical scars on his knee and leg
20. Thus, the petitioner has sustained total disability of right lower limb at 40% and that of has whole body disability at 20%. The PW2 in his cross examination has admitted that, he has not treated the petitioner personally and denied since he has not treated the petitioner personally, he is not competent person to assess the disability of the petitioner, denied that whatever the disability he has assessed in respect of the stability and mobility component will come down after removal of implants, he has 16 MVC No.215/2019 assessed the disability at premature stage and 1/3rd portion of particular limb disability has to be taken as whole body disability and disability which assessed by him is on the higher side and not mentioned as per the guidelines and removal of implants will be done on free of cost.
21. The P.W.2 being the treated doctor in his evidence has clearly stated about the complaints and difficulties of the petitioner due to the accidental injuries. So, the evidence of PW.2 corroborate the evidence of the PW.1. Ex.P.6 is the wound certificate which issued by the Bowring and Lady Curzon hospital, Bengaluru in which it is clear the petitioner has sustained following injuries;
1. Right Eye Echymious present
2. Superficial abrasion measuring 4.3 cms.
Present over right forehead,
3. Right leg swelling, deformity, associated with tenderness and restricted movements.
xray of right leg shows fracture of both bones of right leg.
22. The above injuries No.1 & 2 are simple in nature, injury No.3 is grievous in nature. Ex.P.8 is the referral letter issued by 17 MVC No.215/2019 the Bowring and Lady Curzon hospital, Bengaluru in which it is clear the petitioner got admitted to the very hospital on 1912 2018 in respect of the injuries which sustained by him in a road traffic accident said to have been taken place on 19122018 as he has sustained fracture of both bones of right leg and other injuries as mentioned in the wound certificate. ExP.9 is the discharge summary which issued by the Bowring and Lady Curzon hospital in which it is clear that the petitioner has took the treatment in connection of fracture of both bones of right leg i.e. tibia and fibula and he was underwent close reduction and internal fixation of IMIL nail as he has took the treatment from 19122018 to 28 122018 almost for a period of 10 days. Ex.P.11 is the medical bill which issued by the Unity Life Line hospital is very much clear that the petitioner soon after the accident has took the first aid treatment at Unity Life Line hospital. Ex.P.13 is the letter which issued by Unity Life Line hospital in which it is clear that the petitioner has sustained both bones of right leg. Ex.P.14 is the outpatient record reflects that the petitioner after the discharge has took the treatment as outpatient in connection of the injuries sustained in a RTA. Ex.P.15 is the MLC reflect that the petitioner has met with an accident and sustained fracture of both bones of 18 MVC No.215/2019 right leg and took the treatment as inpatient and under went surgery. Ex.P.16 are the xray films reflects that the petitioner has under went the surgery and the implants are in situ. Ex.P.12 are the medical prescriptions reflects that the petitioner has took the treatment in connection of the injuries sustained in the RTA. So, one thing is clear from the oral and documentary evidence on record, that the petitioner has sustained the fracture of both bones of right leg and took the treatment as inpatient and under went surgery and implants are in situ. So, considering the oral and documentary evidence, it is just and necessary to award just compensation for the following heads:
A). Pain and sufferings:
23. The PW.1 is being the injured in his evidence has clearly stated that he has sustained fracture of both bones of right leg and took the treatment as inpatient almost for a period of 10 days. Ex.P.8 and 9 are very much clear the petitioner has sustained fracture of both bones of right leg and underwent surgery and took the treatment as inpatient and inspite of best treatment he could come to the normal position and still he is facing difficulties and the PW2 is being the Orthopaedic Surgeon 19 MVC No.215/2019 has clearly stated about the complaints and difficulties of the petitioner due to the fracture of both bones of right leg. On this aspect, the learned counsel for the petitioner has requested the Court to award compensation under the above head for Rs.50,000/ and drawn the Court attention on the judgment of Hon'ble Supreme Court passed in special leave petition No.2259/20178 in between Harish Kumar V/S The Divisional Manager, New India Insurance Co. Ltd. On careful perusal of the said judgment, in the said judgment, the claimant being the injured filed the appeal before the Hon'ble Supreme Court, being aggrieved the order of Hon'ble High Court and the Hon'ble Supreme Court has affirmed the compensation of Rs.2,26,400/ which awarded by the Tribunal as the petitioner had sustained fracture of right tibia lower 1/3rd and their lordship awarded Rs.50,000/ under the head of pain and sufferings. In the instant case, the petitioner not only sustained fracture of right tibia but also sustained the fracture of right fibula. So, considering the oral and documentary evidence on record and treatment of the petitioner as inpatient and outpatient as well as the judgment of Hon'ble Supreme Court which referred above, it is just and 20 MVC No.215/2019 necessary to grant just compensation of 50,000/ for the above head, it will meet the ends of justice. Hence, 50,000/ is awarded for the above head.
B. Medical bills
24. The PW.1 being the injured in his evidence has stated that he has spent Rs.30,000/ towards his treatment, But the reasons best known to him has not produced the medical bills worth of Rs.30,000/ to show that he has took the treatment by spending an amount of Rs.30,000/, however the petitioner has produced the medical bills worth of Rs.6,570/. Though the learned counsel for the respondent No.2 has cross examined the PW.1 nothing is disputed about the medical bills placed on record. So, considering the treatment taken by the petitioner, it is just and necessary to award 6,570/ towards his treatment. Thereby, 6,570/ is awarded for the above head.
C. Loss of income during laid up period
25. The PW.1 being the injured in his evidence has stated that prior to the accident he was working as a Mechanic by getting monthly income of Rs.25,000/ and he has took the 21 MVC No.215/2019 treatment as an inpatient for 10 days, inspite of best treatment he could not come to the normal position still he is under treatment and facing difficulties. P.W.2 being the Orthopedic surgeon in his evidence has clearly stated about the treatment taken by the petitioner as inpatient and outpatient. Though the P.W.1 in his evidence has stated that prior to the accident he was hale and healthy, working as a Mechanic by getting monthly income of Rs.25,000/, but he did not produced any documents to substantiate his income as alleged in the claim petition. So, in the absence of the materials, it is very difficult to believe the income of the petitioner as stated in the claim petition. Thus, this court drawn its attention on the decision of the Hon'ble High Court of Karantaka reported in 2018 (3) KCCR 2141 in between the National Insurance Company Limited V/s Shri Adiveppa Appanna Naik and others which reads like thus;
C. Motor Vehicles Act, 1988 Compensation Income No Specific material Notional income could be taken into consideration Hence Notional Income of Rs.9000/ taken into account instead of plea as put forth.
22 MVC No.215/2019On careful perusal of the above said decision, in the said decision though the legal heirs of the deceased Kasturi filed the claim petition for seeking the compensation on the ground that the deceased was Tailor by avocation, however the Tribunal has considered Rs.11,000/ as notional income of the deceased, that is the reason why his lordship held that there is no material on record to decide the avocation and income of the deceased in the case on hand, any how it is not the case of the insurance company that the deceased was an idle woman who was not earning anything at all, even if the deceased is taken to be an ordinary labor, still her notional income would be Rs.80009000/ and same is supported by the notional income chart ordinarily operated by the Lok Adalats in settling the disputes, admittedly in the above said judgment the accident was occurred on 21102016 whereas in the instant case, the accident was occurred on 19122018. So, considering the present life condition and date of accident as well as the decision which cited supra, it is just and necessary to consider notional monthly income of the petitioner as Rs.10,000/, it will meet the ends of justice. Therefore, the petitioner's notional monthly income is taken into consideration as Rs.10,000/. Admittedly the 23 MVC No.215/2019 petitioner has sustained fracture of both bones of right leg , due to the accidental injuries. So, considering the duration of treatment as an inpatient and outpatient, as well as the injury sustained by the petitioner in a road traffic accident, the petitioner might have lost the income for a period of two months, so loss of two months income comes to 20,000/, thus 20,000/ is awarded for the above head.
D. Loss of income due to disability
26. The PW.1 being the injured in his evidence has clearly stated that soon after the accident he has been shifted to Unity Life Line hospital, wherein he took the first aid treatment, later on shifted to Bowring and Lady Curzon hospital, Bengaluru and took the treatment as inpatient for a period of 10 days and underwent surgery in respect of both bones of right leg, inspite of best treatment he could not come to the normal position, still he is under treatment and facing difficulties. The P.W.2 being the Orthopedic surgeon in his evidence has clearly stated about the fractures which sustained by the petitioner and also surgery in respect of both bones of right leg which underwent by the petitioner as well as his difficulties. According to him the 24 MVC No.215/2019 petitioner has sustained permanent disability to an extent of 40% of right lower limb and that of his whole body to an extent of 20% and moreover the learned counsel for the respondent while cross examination of the P.W.2 has suggested that 1/3rd portion of particular limb disability will have to be taken into consideration as whole body disability, for which he has denied the same.
27. The learned counsel for the petitioner while canvassing his arguments has requested the Court to consider the disability by the petitioner as stated by the PW2 and drawn the Court attention on the judgments of Hon'ble Supreme Court which reported in 2015 ACJ 721 in between Jakeer Hussain V/S Sahir & ors., 2017 ACJ 1065 in between M.S. Lokesh V/S Achappa & Anr. And 2014 ACJ 627 in between Syed Sadique & Ors. V/s Divisional Manager United India Insurance C. Ltd., On careful of the said judgments in the said judgments, their lordship considered the functional disability at 100%, 30% and 85%. In the instant case, the petitioner has sustained fracture of both bones of right leg. Thus, the principles which are laid down in the above judgments are applicable to the case on hand. 25 MVC No.215/2019
28. So, considering the evidence of the P.W.1 and 2 and the suggestions which made by the learned counsel for the respondent No.2 to the P.W.2 and duration of treatment as well as fracture which sustained by the petitioner and the principles which laid do wn in the decisions, which referred above, if the whole body disability is taken into consideration to an extent of 15% instead of 20% it will meet the ends of justice. Hence, 15% disability is taken into consideration as whole body disability of the petitioner due to the accidental injuries. The petitioner in his claim petition has alleged that as on the date of the alleged accident he was aged about 66 years, but whereas Ex.P.6, P.8 and P.9 are the medical records reflects the petitioner was aged about 68 years as on the date of accident, if at all the petitioner was aged about 66 years as on the date of accident the petitioner would have produced the documents to substantiate the age as shown in the claim petition. Therefore, the petitioner's age is taken into consideration as 68 years as on the date of the alleged accident. So by virtue of Sarala Verma and others V/s. Delhi Transport Corporation and another reported in 2009 ACJ 1298 multiplier 5 is applicable. So, the petitioner monthly income is already taken 26 MVC No.215/2019 into consideration as 10,000/, so loss of future income due to the disability is works out as stated below ;
Rs.10,000 x 12 x 5 x 15% = 90,000/, So 90,000/ is awarded for the above head.
2. Loss of amenities conveyance food and nourishment and attendant charges
29. The PW.1 being the injured in his evidence has clearly stated that he has sustained fracture of both bones of right leg and took the treatment at Unity Life Line Hospital and Bowring and Lady Curzon hospital, Bengaluru as inpatient and underwent surgery in respect of both bones of right leg, inspite of best treatment he could not come to the normal position still he is facing difficulties. The P.W.2 being the orthopedic surgeon has clearly stated about the fracture which sustained by the petitioner and the difficulties facing by the petitioner in connection of the injuries sustained in a road traffic accident. So considering the evidence of PW.1 and 2 and the materials on record it is just and necessary to grant just compensation of 40,000/ it will meet the ends of justice. Hence 40,000/ is awarded for the above 27 MVC No.215/2019 head.
F. Future medical expenses
30. The PW.1 being the injured in his evidence has clearly stated that he has sustained fracture of both bones of right leg and underwent surgery ad the implants are in situ. The PW2 being the Orthopedic Surgeon in his evidence has stated that, the petitioner has underwent surgery and the implants are insitu. Ex.P 16 are the Xray films reflects that the implants are in situ. So one more surgery is required for removal of implants. Thus, considering the oral and documentary evidence on record, it is just and necessary to award Rs.15,000/ for the above head, it will meet the ends of justice. Thus, Rs.15,000/ is awarded for the above head.
31. Thus, the total award stands as follows:
Heads Amount
Pain and suffering 50,000
Medical bills 6,570
Loss of income during laid up period 20,000
Loss of future earning due to disability
90,000
Loss of amenities conveyance 40,000
food and nourishment and attendant
charges
28 MVC No.215/2019
Future medical expenses 15,000
Total 2,21,570
Hence, the petitioner is entitled for total compensation of Rs.2,21,570/.
32. The respondent No.2 in his objection statement has stated that, the rider of motor cycle was not holding the valid and effective driving licence and the respondent No.1 being the owner of the offending vehicle was contravened the terms and conditions of the policy, for which respondent No.2 has examined the Second Divisional Assistant, RTO Gnanabharathi as RW1, in his evidence he has clearly stated as per Ex.R.2 the rider of the motor cycle namely Raghvendra was holding the driving licence to drive two wheeler with gear valid from 14022006 to 13022026 and as on 19122018 the rider of the motor cycle was holding driving licence to ride the motor cycle with gear. So, as per Ex.R.2, the rider of the motor cycle was holding the valid and effective driving licence to ride the offending vehicle as on the date of accident.
33. The respondent No.2 has taken up the contention that the petitioner was crossed the road where there is no pedestrian crossing and without observing the movements of the vehicle and 29 MVC No.215/2019 without following the traffic rules and regulations and the petitioner alone was cause for the accident. The learned counsel for the respondent No.2 while canvassing his arguments has submitted that the petitioner was crossed the road where there was no zebra cross. Therefore, it is just and necessary to consider to some extent about the contributory negligence of the petitioner for the cause of accident, but on the other hand, the learned counsel for the petitioner while canvassing his arguments has submitted that the respondent No.2 has not placed any materials to show that there was an zebra cross nearby the place of accident even then the petitioner crossed the road where there was no zebra cross, since the petitioner was just crossing the road by observing the traffic rules on both side of the road, though there is a sufficient space to void the accident but the rider did not taken minimum care, merely on the ground that the petitioner was crossing the road at the time of accident it does not mean that the petitioner was contributed for the cause of accident. Now, the question arises, whether crossing of road where there was no zebra cross is amount to the contributory negligence on the part of the petitioner, as the panchanama and the sketch marked as Ex.P.2 which prepared by the I.O. are clearly reflects that the I.O. 30 MVC No.215/2019 has not shown any zebra cross nearby the place of accident and the width of alleged road was of 30 feet and the accident was occurred just 3 feet away from the eastern side of the service road and there is a 27 feet road towards western side to avoid the accident, but the reason best known to the rider of the motor cycle did not taken minimum care, since the accident was not occurred in the night hours which taken place in the day hours at about 10.45 a.m., Thus, this Court drawn its attention on the judgment of the Hon'ble High Court of Karnataka passed in MFA No.10630 of 2011 in between K.Seetharamu V/S Oriental Insurance Co. Ltd. In said judgment the Tribunal considered 40% of the contributory negligence on the part of the petitioner on the ground that the petitioner was crossed the road where there was no zebra cross, thereby the petitioner has filed the appeal against the award of the Tribunal before the Hon'ble High Court of Karnataka, in the said appeal his lordship held that there was no evidence whatsoever as to where exactly the zebra crossing was located on the said road Bengaluru City being a large Metro Polis, crisis of crossing the roads both main and arterial, it is a duty of the Department of Constabulary of the State to provide for zebra 31 MVC No.215/2019 crossing and not the pedestrian to be saddled with negligence for crossing the road in the absence of zebra crossing. It is elsewhere said that the drivers of vehicles and riders of motor cycles in Bengaluru City must be circumspect and if that is so, then the care and caution that the driver or a rider of the motor cycle must observe is of great importance and the MACT was not taken into consideration of these facts and fastening 40% of negligence on the appellant, a pedestrian that finding of the MACT calls for interference. In the instant case also the respondent No.2 is not placed any materials on record in view of the observation of the Hon'ble High Court of Karnataka in the judgment which stated supra. Thus, the judgment which referred above is applicable to the case on hand.
34. Further this Court drawn its attention on the judgment of Hon'ble High Court of Karnataka MFA No.5516 of 2013 in between M/S. ICICI Lombard General Insurance Co. Ltd., V/S Sri Krishna Ram S/o. Dhima Ram & ors. In the said judgment the deceased Dinesh Krishna Ram was crossing the road, at that time driver of the bus was came and dashed against the deceased, who was succumbed due to the accidental injuries and his legal 32 MVC No.215/2019 heirs were filed the claim petition for seeking compensation and the insurance company has been appeared and taken up the contention that the deceased was crossed the road at a place which was not ear marked for crossing the pedestrian and there is a contributory negligence on the part of the deceased and the said claim petition was came to be allowed in partly without considering the contributory negligence as alleged by the insurer. Thus, the appellant/insurer has filed the appeal before Hon'ble High Court of Karnataka and the said appeal was came to be dismissed. In the said judgment his lordship held that the arguments that there was no zebra crossing and therefore, some degree of contributory negligence has to be attributed to the deceased cannot also be accepted. The bus driver sits at a vantage point and would have clear visibility over the entire width of the road and even if pedestrians were crossed a road the pedestrian would clearly be visible and there is an absolutely no justification for the driver to contend that the pedestrian had crossed the road at a place where there is no pedestrian crossing. As per Ex.P.4 had a clear line of vision over the entire road and the collusion between the bus and pedestrian clearly indicates that there was negligence only on the part of driver of the bus. In the instant 33 MVC No.215/2019 case also the learned counsel for the respondent No.2 has much argued that the petitioner was crossed the road where there was no zebra cross, but the respondent No.2 has failed to bring the facts to show that there was a zebra cross nearby the place of accident and the width of the road was very small and unable took the motor cycle towards the western side and the rider of the motor cycle was taken more care than the petitioner. Therefore, the decision which stated supra is directly applicable to the case on hand. So, question of consider the contributory negligence on the part of the petitioner does not arise.
35. Thus, the respondent No.1 and 2 being the owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation. But, in view of the valid insurance policy the 2nd respondent is liable to pay the compensation with interest at the rate of 8% per annum from the date of petition till its realization. Hence, I am of the opinion that issue No.2 is answered as Partly in the Affirmative.
36. ISSUE NO.3 : In view of my finding on issue No.1 and 2 as stated above, I proceed to pass the following order. 34 MVC No.215/2019
ORDER The petition U/Sec. 166 of Motor Vehicle Act filed by the petitioner against the respondents is hereby partly allowed with costs.
The petitioner is entitled for compensation of 2,21,570/ ( Two Lakhs Twenty One Thousand Five Hundred and Seventy only) together with interest at the rate of 8% per annum from the date of the claim petition till its realization.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation, but in view of valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 8% per annum from the date of the claim petition till its realization within a period of 30 days from the date of this order.
Out of the compensation amount of the petitioner, 40% shall be deposited in any nationalized or schedule bank in the name of the petitioner for a period of three years and remaining 60% shall be released to the petitioner through RTGS/NEFT by way of Epayment.
The petitioner is at liberty to withdraw accrued interest periodically on his deposit.
Advocate fee is fixed for Rs. 2,000/.
35 MVC No.215/2019
Draw award accordingly.
(Dictated to the stenographer, transcribed by her and then corrected by me, signed and pronounced in the Open Court this the 12th day of November, 2020).
(P.J. SOMASHEKHAR) XIII Addl.Small Causes Judge & Member MACT, Bengaluru.
ANNEXURE List of the witnesses examined on behalf of petitioner :
PW.1 Shanmugam K.N PW.2 Dr. S.A. Somashekar List of the documents exhibited on behalf of petitioner:
Ex.P.1 C.C of FIR with statement Ex.P.2 C.C. of Spot mahazar with sketch Ex.P.3 C.C. of IMV report Ex.P.4 C.C. of Notice u/s. 133 of MV Act Ex.P.5 C.C. of reply to the said notice Ex.P.6 C.C. of Wound certificate Ex.P.7 C.C. of Charge sheet Ex.P.8 Referral letter Ex.P.9 Discharge summary Ex.P.10 Notarized copy of Aadhaar card of PW1 Ex.P.11 Medical bills (10 in Nos.) Ex.P.12 One prescription Ex.P.13 Unity Life Line hospital referral letter Ex.P.14 Out patient record with examination report 36 MVC No.215/2019 Ex.P.15 Inpatient case sheet Ex.P.16 Xrays (3 in Nos.)
List of the witnesses examined on behalf of respondent:
RW.1 H. Naveen Kumar List of the documents exhibited on behalf of respondents:
Ex.R.1 Authorization letter
Ex.R.2 DL extract of Raghavendra
(P.J. SOMASHEKHAR)
XIII Addl.Small Cause Court Judge
& Member MACT, Bengaluru.
37 MVC No.215/2019
Judgment pronounced in the Open Court
(Vide separate Judgment)
ORDER
The petition U/Sec. 166 of Motor Vehicle Act filed by the petitioner against the respondents is hereby partly allowed with costs.38 MVC No.215/2019
The petitioner is entitled for compensation of 2,21,570/ ( Two Lakhs Twenty One Thousand Five Hundred and Seventy only) together with interest at the rate of 8% per annum from the date of the claim petition till its realization.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation, but in view of valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 8% per annum from the date of the claim petition till its realization within a period of 30 days from the date of this order.
Out of the compensation amount of the petitioner, 40% shall be deposited in any nationalized or schedule bank in the name of the petitioner for a period of three years and remaining 60% shall be released to the petitioner through RTGS/NEFT by way of Epayment.
The petitioner is at liberty to withdraw accrued interest periodically on his deposit.
Advocate fee is fixed for Rs. 2,000/.39 MVC No.215/2019
Draw award accordingly.
XIII Addl.Small Cause Court Judge & Member MACT, Bengaluru.
AWARD SCCH NO.15 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BENGALURU CITY 40 MVC No.215/2019 MVC.No.215/2019 Sri. Shanmugam K.N., S/o Nallandi Gounder, Aged : 66 years, Occ: Mechanic, R/at No.39, 3rd Main Road, Kamakshi Paly, Basaveshwarangar, Bengaluru560079.
.......Petitioner/s.
(Shri. K.S.L., Advocate) Vs.
1. Sri. S. Raghavendra, S/o. Sri. Sanjeev Kumar, No.40/2, 7th Cross, Sri Gandhadakaval, Bengaluru - 560 091.
(Owner of Motor cycle No.KA02EQ7045)
2. The Regional Manager, United India Insurance Co. Ltd., 5th & 6th Floor, Krishi Bhavan, Nrupathunga Road, Hudson Circle, Bengaluru560 001.
(Insurer of Motor cycle No.KA02EQ7045 Policy No.71683118P102225958 Valid: 16.05.2018 to 15.05.2019) ( Respd.No.1 : Exparte Respd.No.2 Rep/by Sri. H.T.V., Advocate)) WHEREAS, this petition filed on ______________ by the petitioner/s above named under Section 166 of the M.V.Act, 1988, praying for compensation of Rs.________________(Rupees _____________________ __________________________ for the injuries sustained by the petitioner/death 41 MVC No.215/2019 in a motor accident caused by vehicle bearing No. WHEREAS, this claim petition coming up before Sri.P.J. Somashekhar, Senior Judge, MemberMACT, Bengaluru, in the presence of Shri Advocate for petitioner/s and of Shri Advocate for respondent.
ORDER The petition U/Sec. 166 of Motor Vehicle Act filed by the petitioner against the respondents is hereby partly allowed with costs.
The petitioner is entitled for compensation of 2,21,570/ ( Two Lakhs Twenty One Thousand Five Hundred and Seventy only) together with interest at the rate of 8% per annum from the date of the claim petition till its realization. The respondents No.1 and 2 are jointly and severally liable to pay the compensation, but in view of valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 8% per annum from the date of the claim petition till its realization within a period of 30 days from the date of this order.
Out of the compensation amount of the petitioner, 40% shall be deposited in any nationalized or schedule bank in the name of 42 MVC No.215/2019 the petitioner for a period of three years and remaining 60% shall be released to the petitioner through RTGS/NEFT by way of E payment.
The petitioner is at liberty to withdraw accrued interest periodically on his deposit.
Advocate fee is fixed for Rs. 2,000/.
Given under my hand and seal of the Court this the ......... day of ......................2020.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA:
BENGALURU.
By the Petitioners By the Respondent Court fee paid on petition Process Pleaders Fee:
Total Decree Drafted Scrutinised by:
Decree Clerk: Sheristedar:
43 MVC No.215/2019
MEMBER M.A.C.T.
MOTOR ACCIDENT CLAIMS
TRIBUNAL